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Suspended possession orders: procedure for enforcement and proleptic discharge provisions

22 June 2018, by Connor Johnston

Connor Johnston

Armstrong v Ashfield District Council [2018] EWCA Civ 873, 25 April 2018

The appellant, Mr Armstrong, was the secure tenant of the respondent, Ashfield DC. In June 2013, following a trial, a suspended possession order was made in respect of Mr Armstrong’s home. The order provided as follows:

  1. ‘The order for possession is not to be enforced and the tenancy will continue so long as [the appellant] complies with clauses 6.2, 8.2 and 8.6 of his tenancy agreement, dated 11 September 2009.
  2. The [respondent] shall not be entitled to apply for a warrant for possession so long as the [appellant] complies with clauses 6.2, 8.2 and 8.6 of his tenancy, and if such application is to be made it must be in writing, served on the [appellant] and any hearing reserved to DJ Millard, if available.
  3. Paragraphs 1 to 3 inclusive of this order shall be discharged on 4 June 2014.’

In October 2013, Ashfield wrote to Mr Armstrong informing him that there had been further breaches of tenancy, and that it would be seeking a warrant of possession. That same day Ashfield applied to the county court for a warrant, which was issued. Critically, the warrant was issued as an administrative act by the court, as is the norm. The application for the warrant was not made to, or considered by, DJ Millard or any other judge, as envisioned by clause 3 of the SPO.

An application was made to suspend the warrant. After some months of delay (with various interim orders and directions given in the meantime) the matter came before a Circuit Judge for trial on 25 June 2014. The judge dismissed an objection raised on behalf of Mr Armstrong that Ashfield could not rely on the warrant as it had followed the incorrect procedure. On this issue the judge said that:

‘It is perfectly obvious what Judge Millard wanted was to ensure that before the order for possession was enforced there should be a judicial review of the legitimacy of ending the [appellant’s] possession by enforcing a suspended order he had made. That has been achieved, that is why we are here today …’

The judge went on to find that the allegations of breach were well founded and dismissed Mr Armstrong’s application. Mr Armstrong appealed. Two points were taken on his behalf. First, that there was no extant possession order by the time of the hearing in front of the Circuit Judge ‘by reason of paragraph 4 of the June 2013 order and the effluxion of time’, meaning that there was no jurisdiction to allow a warrant to be enforced. Second, that the judge had been wrong to dismiss the procedural argument based on paragraph 3 of the order.

Patterson J dismissed Mr Armstrong’s appeal and the Court of Appeal dismissed a second appeal. It was correct to say that if a possession order has been discharged, a warrant of possession cannot be executed. However, the possession order had not been discharged. The provision for automatic discharge in paragraph 4 of the order did not, on a proper interpretation of the order, apply in circumstances where Mr Armstrong had breached the conditions on which the order had been suspended during the time of the suspension and Ashford had made a valid application to enforce within that time period. As to the procedural argument, based on paragraph 3, the Circuit Judge ‘was plainly entitled to adopt the approach he did and to treat as immaterial in the circumstances the failure by the respondent to follow the procedure prescribed’.